19 F. 875 -

19 F1d 875

the bankrupt law, the weight of authority favored a construction lim· iting the proof of debts to those existing at the time of filing the petition. The proofs should be expunged·

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THE ALINE. l

(DiBtrict (Jourt, E. D. New York.

1.

SHIPPING DELIVERY - PERISHABUt WEATHER-"AcT OF GOD."

December 31,1883.)

DISOHARGE IN FREEZING

CARGO -

A steamship broug-ht a consignment of oranges to New York, where she arrived on December 29th. The weather was so cold as to render it impossit,_e to land oranges without freezing them, and continued below zel'O for several days. The oranges were landed in spite of theconsigIUle's.objection, and their value was for the most part destroyed. lIeld, tI/-at the act whlCh destroyed the fruit was not the" act of God," but of man, in discharging the oranges at an unsuitable time.

A vessel is not .. ready to discharge," within' the meaning of a prOVIsion in the bill of lading that all goods are" to be taken froin along-side immediately the vessel is ready to discharge," when it is impo,Ssible for her to discharge without destroying the cargo. 3. SAME-" EFFECT OF CLIMATE." __ " Effect of climate," used in a bill of lading, does not apply to the .effect of a temporary frost.
4. SAME-NEGLIGENOE. Where it was proved that there was no necessity to land the oranges at

2. SAME-ExCEPTIONS IN BILL OF LADING-VESSEL READY.TO DISCHARGE.

that time, either because other consignees had cargo, which could not be separated from the libelant's, or because of the engagements of the vessel, it was held to he negligence on the part of the vessel to discharge at that time, and a decree was ord(!red in favor of tbe libelant.

In Admiralty. Jas. K. lIill, Wing et Shoudy, (R. D. Benedict, of counsel,) for libelant. McDaniel, Wheeler <to Souther, for claimants. BENEDIOT, J. This action is brollght to recover the value of a consignment of oranges shipped on board the steamship Aline, ,in Jamaica, to be delivered at New York. There is no substantial dispute in regard to the material facts. Tbeoranges were shipped in good order, and arrived in New York, in like order. The da.y on which Wednesday,December 29th. the steamer arrived at New York, was so cold as to render it impossible to land oranges .without freezing The weather continued cold, indeed below zero, until the following Monday. The steamer commenced to land orangea on the $nd Friday of her arrival, and on that and the foUo,wing day landed the whole consignxqent. The necess.ary conseQuence was
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Reported

R D. & Wyllys Benedict, of the New Y orkbar.

Si6

FEDERAL REPORTEB.

that the libelant's oranges were frozen, and their value for the most part destroyed. Objection was made by the libelant to the landing of the oranges because of the unsuitable weather, and he now bl'ings this action to recover his loss. It is conceded in behalf of the steam-ship that her defense, if she has any, rests upon the exceptions mentioned in the bill of lading. One of the exceptions relied on is that of damage caused by "act of God." But the act which destroyed this fruit was not the act of God, but of man, in discharging the oranges at an unsuitable time. Again, it is contended in behalf of the steamer that the bill of lading makes special provision for the landing of these oranges when they ,were landed, because it says, "all goods to be taken from alongside immediately the vessel is ready to discharge." But this provision cannot relieve the steamer, for she was not "ready to dis, charge," within the meaning of this provision, when it was impossible for her to discharge without destroying the cargo. Ready to discharge means relLdy to make a proper discharge. And a discharge ()f oranges when the weather is so cold as to freeze them before they can be removed from the wharf is not a proper discharge. Next, it is contended that the steamer is freed from liability by the provision oJ the bill of lading, which declares that the ship shall not be liable for any injury to the goods occasioned by · · effect of climate or heat of holds." But it would, as it seems to" me, be straining language to consider the word "climate," used in the bill of lading, as intended to apply to a temporary frost such as existed when the steamer an·ived. Moreover, in my opinion, negligence is shown, if it be proved, as I think it has been proved, that there was no necessity to land the libelant's oranges at the time when they were landed. The olaimants insist that the steamer was compelled to land the oranges when she did, because she was a general ship, and other consignees of oranges had demanded the immediate landing of their fruit, from which the libelant's f;ruit could not be separated in the ship. If such a demand on the part of other consignees of cargo can be said to have been proved, it created no duty OIl of the carrier, to discharge immediately, when such discharge would necessarily the destruction of cargo belonging to others. Such a demand, to be effective, must befeasonable. It was unreasonable on the part of consignees of anyoargo to ask the steamer to destroy in brder to :make immediate delivery of theirs. !No! was th'ere 1'tny neoessity for the immediate discharge of these orarigesari'sin;g'outof the engagements of the steam-ship. ,The qu'estipri whetlier"a steamerrunning'jn a regular lihe, and obligation to sail on an advertised day, has the, right to discharge inof ,results, when the .becomes neceS8ltry to ehlible harto sail'OI), bel" appointed day,.dges not, arise For here 'Uhi' shOwn thafthe'steamer did not sail on h'er appoin,ted over a day, merely the sake of getting, in more day, but :" " ., .
,.

THE GEISER.

877

cargo, and it also appears that there was time before she sailed to have landed all the oranges in suitable weather and taken in all the outward cargo that she had to take. In this instance, therefore, there was no necessity to discharge the oranges when she did, to enable the steam-ship to keep her appointment. The oranges in question were shipped under two bills of lading, differing from each other in some particulars, but, in the view I have taken of the case, they are alike in legal effect, so far as regards the libelant's demand, and under any aspect in which I have been able to consider them, they do not relieve the steam-ship from responsibility to the libelant for the destruction of his fruit. There must therefore be So decree in favor of the libelant. The amount of his damages will be ascertained by a reference. Let a decree be entered accordingly.

THE

GEISER. t

(District (Jour!. E. D. New York. March 4, 1884.)
DAMAGE' TO CARGO BY HEAT FROM STEAM-PIPEs-BILL OIl' LADING-CONSIGNEE'S RIGHT OF ACTION-ADVANCES.

Where cabbages were stowed in the between-decks of a steam-ship, and were injured by heat from steam-pipes placed around the room where the cabbages were, for the purpose of warming the room when used, as it was intended, for steerage passengers, and it appeared,that, the pipes being new and in some places obstructed, extra steam was put on in them to keep tlte chart-room warm, heW, that the vessel was negligent and liable to the shipper for the damage done; that, though the shipper had expressed himself satisfied to have the cabbages stowed as they were, he could not be supposed to have assentlld to the pipes being undUly heated as they were; that the fact that the consignees who sued on the bill of lading had afterwards been paid their advances, did not destroy their right of action upon the contract. ,

BENEDIOT, J. This action is to recover for non-delivery in good order of a consignment of cabbages shipped in Copenhagen, on board the steam-ship Geiser, to be transported therein to the port of New York. The cabbages were stowed in the between-decks, and upon their arrival in New York a large portion of them were decayed, being then, according to the witnesses, about the consistency of soup. This condition of the cabbages was not owing to their condition when shipped. Then they were hard and sound. Nor was it owing to an unusually severe voyage. Quantities of cabbages in various vessels have endured So voyage of equal severity without decay or injury.
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